(영문) 서울서부지방법원 2015.09.03 2015노925

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(영문) 서울서부지방법원 2015.09.03 2015노925

전자금융거래법위반

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All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the court below (Defendant A: imprisonment of one year, confiscation evidence 1 through 19, Defendant B: imprisonment of eight months, suspension of execution of two years, community service work 120 hours, confiscation evidence 20, 21, 23 through 34) is too heavy.

B. The prosecutor’s misunderstanding of facts was issued 25 cash cards from February 9, 2015 to one week from D and the same year.

3. In full view of the fact that, until the arrest of December 12, 199, approximately KRW 3 billion was withdrawn, and the Defendants did not agree with D on the time and method of return of cash cards and did not know the personal information of a person who has not received the money from D or the Defendants, it is reasonable to deem that the Defendants were transferred the ownership or right to dispose of the cash card Chapter 25. However, the lower court erred by misapprehending the legal doctrine that otherwise determined.

2 The sentence of the court below on the grounds that the sentence of unfair sentencing is too minor.

2. Determination

A. As to the prosecutor’s assertion of mistake of facts, the acquisition of the means of access referred to in Article 49(4)1 of the Electronic Financial Transactions Act means a definitive transfer of the ownership or the right to dispose of the means of access on the basis of the transferor’s intention, and it is reasonable to deem that the act of borrowing or obtaining delegation for temporary use is not included in such act. Such act of taking over the means of access should be deemed to have been terminated when the transferee took possession of the means of access from the transferor when the transferee took possession of the means of access from the transferor (see Supreme Court Decision 2011Do14913, Feb. 9, 2012). 2) In full view of the evidence duly adopted and examined by the court below, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the Defendants obtained the ownership or the right to dispose of the cash card 25 from D, and there is no other evidence to acknowledge it. A. Defendant A has been 25 days ago.

참조조문

-전자금융거래법 제49조 제4항 제1호

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